Supreme Court Takes Up Church-State Case ; A Wisconsin Group Says the President's Faith-Based Initiative Is Illegal. but Can Taxpayers Sue the Government over Funding?

By Richey, Warren | The Christian Science Monitor, February 28, 2007 | Go to article overview

Supreme Court Takes Up Church-State Case ; A Wisconsin Group Says the President's Faith-Based Initiative Is Illegal. but Can Taxpayers Sue the Government over Funding?


Richey, Warren, The Christian Science Monitor


President Bush's faith-based initiative is a signature program of his administration. But not all Americans share the president's belief that the government should work in close partnership with religious organizations willing to perform nonreligious public services, like running homeless shelters or drug counseling programs.

Wednesday, the US Supreme Court takes up a case that examines to what extent those opponents have legal standing to file federal lawsuits alleging that the White House's faith-based initiative amounts to unconstitutional entanglement of church and state.

The case stems from a 2002 lawsuit filed by a Wisconsin-based group called the Freedom From Religion Foundation. Members of the group filed the suit as taxpayers who objected to having their tax money used to support religion.

Although the case revolves around the esoteric issue of taxpayer standing to sue, analysts say the case could foreshadow a shift in the Supreme Court's church-state jurisprudence. It marks the first opportunity for the high court to rule in a major religion case since the retirement of key swing voter Sandra Day O'Connor and the addition of Chief Justice John Roberts and Associate Justice Samuel Alito.

"To evaluate the importance of the case you have to look at ... what might come out of it," says Ira Lupu, a professor at George Washington University Law School and church-state scholar.

In opposing the suit in 2002, government lawyers said the Freedom From Religion Foundation had no authority to wage such a legal battle since none of the plaintiffs were able to show that they had suffered a direct and personal injury. It wasn't enough to object as taxpayers.

Sharp divide over wall of separation

Friend-of-the-court briefs filed in the case highlight starkly different visions of religious liberty in America. On one side are those who favor less or no contact between government and religion. On the other side are those who believe that separation between church and state has gone too far, triggering government hostility toward religion and the religious.

In most instances taxpayers lack legal standing to sue the government merely because they object to how the government is spending tax dollars. Instead, the courts require that someone suffer a direct and personal injury that entitles them to sue. This requirement of legal standing helps prevent the courts from becoming a quasi-legislature where policy arguments are debated rather than a forum to decide specific legal disputes.

The same principle applies in most constitutional cases. If the government violates a constitutional right, like the Eighth Amendment's prohibition on cruel and unusual punishment, the injured individual can sue in court to hold the government accountable for its abuses.

But what happens when the alleged constitutional violation involves the First Amendment's establishment clause that prohibits the government from promoting religion?

"The establishment clause is different. It is designed to limit the government from doing things which tend to favor or help people without necessarily hurting anybody in any obvious material way," Professor Lupu says. …

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